We’ve talked about how a large part of David E. Kelly’s humor forces the viewers to think, whether they want to or not. Now we’re going to talk about how his drama forces the viewers to think, whether they want to or not.
One of the things that sets Kelley apart as a writer of TV court dramas is his ability to present both sides equally, without prejudice. This is how he usually does it in like L.A. Law, Picket Fences, Boston Legal, The Practice, and even, occasionally, Chicago Hope: When it’s time for the jury to decide, one side stands up, and gives his case. The case is so convincing and clear and simple that we, the viewers, think that that’s it, it’s a done deal, he’s going to win, the jury’s going to go this way, and there is nothing the other side can say that can save the day.
Then the lawyer for the other side stands up and presents his case. And by the time he’s done, the viewer thinks: That’s it, he’s right, it’s a done deal, he’s going to win, the jury’s going to vote his way.
Very few writers can pull that off. And, of course, the viewers remember that they said they same thing a couple of minutes ago about the other side. This forces them to think for themselves, to weigh both sides, to make up their own minds which way the jury will go and which way they would go. When both sides are given the best representation, it’s up to us to do the thinking. Usually, writers chew the conclusion for us and give us conclusions they hope we'll share. Less thinking is involved.
The ability to think for yourself to Kelley, perhaps, is more important than the fact that you reach the conclusion he agrees with.
Kelley doesn’t always do this, but more often than not, he does. Here are two examples from the third episode of this season’s Boston Legal:
The firm’s client, Miguel Obisbo, has been charged with cockfighting, and he admits to it. The time has come to put it to the jury.
The prosecution gets up and says: “It’s not just that it’s against the law. It’s indecent, barbaric, inhumane. Two chickens – roosters, I should say – are thrown in a pit and forced to do battle until one loses consciousness due to blood loss, at which point the other pecks its head off. It’s sick. And this man openly, notoriously, broke the law to commit a sick, sick crime, one he admits committing. Just having a nun translate for you,” he refers to one of the defense lawyers’ tricks, “doesn’t put you on the side of the angels.”
And with that, he sits down.
Now it’s the defense’s turn: “Ever realize chickens are smarter than dogs? Much, much smarter than horses. And we call them ‘fowl’. How sad that the chicken by far is the most abused animal on the planet, raised in crates less than a square foot, the ends of their beaks snapped off after hatching, pumped up with antibiotics to keep them alive in conditions that would otherwise kill them, genetically altered so that they grow twice as fast, sent off to the slaughterhouse after only 6 weeks of living – typically in open crates where millions of them either freeze to death or get baked alive. The ones who do arrive undead are scalded to defeather them. Then they’re hung upside down and electrocuted just enough so that they don’t flap around when they’re getting their throats slit. It’s not good to be a chicken.
“Now, the cockfighters, they get real food. They get real room to move. They’re often loved as pets. They get at least two good years before they’re even asked to do combat. And if he’s a really good fighter, he gets to retire, to stud service, where he can live the life of... Denny Crane,” he points to Denny. Then he returns to the jury, “The simple truth is that if the chickens in this country hope to be afforded a modicum of dignity, he has to fight. Studies show they might actually enjoy it.
“Now, I suppose you could find my client guilty, because technically he broke the law, which screams out with hypocrisy. Or you could say, ‘Wait a second; Miguel Obisbo offers chickens a better life.’ Miguel Obisbo now trusts you to be... humane. Not just for his sake, but for the chickens’.”
So... Who do you think won?
Notice, by the way, that in the last example and the next, Kelley never talks down to us. The sentences and the arguments are intelligent and thoughtful and... long. The reason we follow them, the reason they’re not boring, as conventional TV wisdom would have us believe, is that each statement advances our heroes’ success or causes one step closer to their plight. So as long as he sticks to the merits of the case and as long as the points are convincing, he keeps our attention.
Moving on: 15-year-old Abby Holt has had unprotected sex and gotten the HIV virus. She is now suing her school, for having taught ‘abstinence only’ rather than teaching her to use condoms.
The school’s lawyer stands up to give his closing argument:
“Your honor, I think we all agree that fifteen is too young to be having sex. Is there anyone here who takes issue with that? Sometimes, when the right answer is ‘no’, you say ‘no’. You don’t start tinkering with morality to coincide with logistics. Kids need to hear ‘no’, not ‘here’s how, just in case’, but ‘no’.
“Abstinence was the right answer here. If she hadn’t had sex, she wouldn’t be HIV positive. And even if you are so determined to opt for pragmatism, abstinence is still the right answer. Since the implementation of this policy, the teen pregnancy rate has gone down 30%. More and more kids are choosing not to have sex, and that’s good. Whether they get sick or pregnant or not.
“And if parents disagree, by the way, they can choose to teach their kids about condoms and birth-control pills and diaphragms. But once the schools start doing so... Come on, you’re explicitly telling the kids it’s expected of them to be sexually active. And many start doing so because they feel all their friends are. Sure, you can pass out condoms. But it is simply more responsible, more moral, and, yes, more safe to practice abstinence. That’s what we should be telling them. And this school is.”
The school is not responsible for the girl getting HIV, is it?
Alan Shore gets up to give his closing:
“This case isn’t about teenage pregnancy. She didn’t get pregnant, she got HIV. I can see why you’d want to make it about teenage pregnancy, since... Well, actually, I can’t. The United States has the worst teenage pregnancy rate of any industrialized nation. And contrary to what Mr. Jovanka would like us to believe, there’s no evidence whatsoever that suggests using condoms or teaching students about condoms makes them any more inclined to have sex. None. They’re already inclined to have sex, since early puberty. They’re simply going to do it. We all do it. Birds do it, bees do it, educated fleas do it. One day, your honor, even you...” At which point the judge angrily uses his gavel.
Shore recovers, “Yes.” Then he continues: “The fact is, this case has nothing to do with the efficacy of abstinence-only programs. This case is about religion, politics, and federal funding. Our present administration, in blind service to the religious right, has transcended the separation of church and state, and consistently implemented a faith-based political and moral mandate. And now that same policy has been passed on to our educational system. If schools teach ‘abstinence only’, they get federal funding. If they teach any other type of sex education, they don’t. And as a result, the students in these ‘abstinence only’ programs aren’t being taught the truth about that magnificent technological marvel, the condom.
“It’s not a dirty word, your honor: condoms. They first came on the scene some 3,000 years ago in Egypt. For centuries they went merrily along, in modified forms, warding off syphilis, gonorrhea, preventing unplanned pregnancies, until science and medicine eventually caught on, and the pill became a much more effective, less intrusive contraceptive. Penicillin and other antibiotics were miracle cures for gonorrhea and syphilis. The poor, humble condom languished.
“And then came AIDS. This terrifying new disease that panicked the world. For many years it has been fatal, gruesomely so in every case. There was no vaccine, no cure, no treatment. But there were condoms, and they worked. They were safe, time-tested, easy to use, and they protected both partners. The condom is arguably the single, most important invention of the past 2,000 years. In fact, it has been said, without exaggeration, that the health of the world depends on them.
“Now, one would think that the obvious choice would be for schools to tell their students as much. But Abby’s school, indeed all schools that have chosen ‘abstinence only’ have chosen to lie. They teach that condoms are ineffective at preventing pregnancies, which is a lie; they teach that condoms are ineffective at preventing diseases, which is a lie; some of the literature actually compares using a condom to playing Russian roulette, which is frightening, despicable, unforgivable lie.”
“Abby Holt has HIV which, in all likelihood, will develop into AIDS. We’ve sort of forgotten about AIDS in this country. Treatments have improved dramatically. Drugs are keeping people alive for many years after they’ve become infected. But the grim butcher’s bill for this pandemic still keeps growing and growing. Sixty-five million people worldwide have become infected. One time, unprotected sex can kill you. A condom can save you. It is inconceivable that every child in the world isn’t taught that. We should be in criminal court this very moment trying this obscenely duplicitous school for conspiracy to commit murder!
“But frankly, I have no stomach for that. I think of the horror that has been inflicted on this 15-year-old girl, and I’m just so profoundly sad. I can point out the evils of this corrupt system, I can tell you how effective condoms are, the lives they save, on and on and on and on, but words seem to be these hollow, useless things rattling around in this courtroom, because ultimately the lies this school told Abby Holt may... will probably kill her. They have certainly altered her life forever. And in the face of that, all I can think of is... Why?”
And, with that, he sits down.
So... who do you think won?
Planting an Idea
In the last example, Kelley did one more thing. He used the argument to create an idea in our heads that probably wasn’t there before: that 'abstinence only' is akin to murder. It doesn’t really matter who wins, now, because there’s an idea in our head now that wasn’t there before. And it’s an idea we probably won’t easily forget.
And that’s how writers try to change the world.